Holt v Honourable Daryl Manzie - [2000] FCA 1857

FEDERAL COURT OF AUSTRALIA

Holt v Honourable Daryl Manzie and another [2000] FCA 1857

ABORIGINAL AND TORRES STRAIT ISLANDERS – native title – future act – notice under s.29 of Native Title Act 1993 – decision to give notice - decision to include expedited procedure statement – need to provide clear description of area affected by proposed act – serious question to be tried – balance of convenience – interlocutory injunction refused.

Native Title Act 1993 ss 25, 28, 29, 30, 31, 32, 185, 186, 190A, 190C, 203BB, 203BG
Native Title (Notices) Determination 1998 s 6

JIMMY HOLT V THE HON DARYL MANZIE MLA, NORTHERN TERRITORY MINISTER FOR RESOURCE DEVELOPMENT & THE NORTHERN TERRITORY OF AUSTRALIA
N21271 of 2000

OLNEY J
15 DECEMBER 2000
DARWIN

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY N1271 of 2000

BETWEEN: JIMMY HOLT
APPLICANT

AND: THE HON DARYL MANZIE MLA

NORTHERN TERRITORY MINISTER
FOR RESOURCE DEVELOPMENT
FIRST RESPONDENT
THE NORTHERN TERRITORY OF AUSTRALIA
SECOND RESPONDENT

JUDGE: OLNEY J

DATE OF ORDER: 15 DECEMBER 2000

WHERE MADE: DARWIN

THE COURT ORDERS THAT:

The applicant’s motion for interlocutory injunctions filed 28 November 2000 be dismissed.

The question of costs be reserved to the trial judge.

AND THE COURT FURTHER ORDERS AND DIRECTS THAT:

(i) Any party may serve on any other party a notice for discovery on or before 22 December 2000.
(ii) Such notice to be returnable on 28 February 2001.

The applicant file and serve any affidavits on which he relies on or before 28 February 2001.

The respondents file and serve any affidavits on which they rely on or before 30 March 2001, together with a list specifying any objections to the applicant’s affidavits.

The applicant file and serve any affidavits in reply on or before 12 April 2001, together with a list specifying any objections to the respondents’ affidavits.

Pursuant to s.33J of the Federal Court of Australia Act 1976, the Court fixes 12 April 2001 as the date by which a group member may opt out of the proceeding.

Pursuant to s.33X(2) of the Federal Court of Australia Act 1976, the Court dispenses with compliance with the requirement in s.33X(1)(a).

The applicant file and serve an outline of submissions on or before 12 April 2001, and the respondents file and serve an outline of submissions on or before 20 April 2001.

10.There be liberty to apply on 3 days notice.
11.The matter be listed for trial on 24, 26 and 27 April 2001.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY

N1271 of 2000
BETWEEN:
JIMMY HOLT
Applicant
THE HON DARYL MANZIE MLA
NORTHERN TERRITORY MINISTER
FOR RESOURCE DEVELOPMENT
First Respondent
THE NORTHERN TERRITORY OF AUSTRALIA
Second Respondent

Judge:  Olney J
Place:  Darwin
Date:  15 December 2000

REASONS FOR JUDGMENT

This proceeding was commenced in the New South Wales District Registry of the Court on 18 November 2000 as proceeding N1271 of 2000. On 6 December 2000 Whitlam J ordered that the whole of the proceeding be conducted and continued in the Darwin (sic) District Registry.
The application is brought under Part IV A of the Federal Court of Australia Act 1976. The group members to whom the proceeding is said to relate are:
(a)all persons who are, or may be, native title holders as defined in s.224 of the Native Title Act 1993 (C’th) in relation to any of the lands or waters, not being Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976, who may be affected by any application lodged under the Mining Act of the Northern Territory at the date of the application in respect of which Subdivision P of Division 3 of Part 2 of the Native Title Act (Subdivision P) applies or will apply;
(b)the Northern Land Council (NLC) and the Central Land Council (CLC), each of which is the representative Aboriginal/Torres Strait Islander body for areas of land or waters referred to in paragraph (a), which lie within the area for which they are recognised (the representative bodies).
The applicant claims orders to review:
(a)certain decisions set out in schedule A to the application and conduct of the first respondent by which the first respondent gave notice under s.29 of the Native Title Act of his intention to do an act, namely the creation of a right to mine (the notice decisions);
(b)the decisions and conduct of the first and/or second respondents in respect of applications for exploration licences set out in schedule A to the application by which the first respondent determined to include a statement under s.32 of the Native Title Act in the said notices that the second respondent considers that the granting of those exploration licences is an act attracting the expedited procedure defined s.237 of the said Act (the expedited procedure decisions);
(c)the course of conduct of the first and/or second respondents in giving such notices and including such statements in dealing with outstanding exploration licence applications at the rate and in the manner particularised below (the course of conduct); and
(d)the refusal of the first respondent to provide, in respect of the decisions identified in schedule B to the application, a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision (the refusals).
(Further reference will be made below to the contents of the schedule A).
The applicant asserts that he and the group members are aggrieved by the notice decisions, the expedited procedure decisions and the course of conduct because their ability to protect the native title interests in the land or waters referred to in the decisions are affected by them, and by the refusals because the ability of the applicant and the group members to identify the reasons for the notice decisions and the expedited procedure decisions, and the material findings and evidence on which the findings were based, is affected by them.
The applicant seeks to invoke the jurisdiction of the Court under:
(a)the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act);
(b)The Human Rights and Equal Opportunity Commission Act 1986, Part IIB, Division 2;
(c)Section 39B of the Judiciary Act1903;
(d)The associated and accrued jurisdictions.
On 7 and 8 December 2000 the Court sitting in Darwin heard, and reserved its decision on, a motion by the applicant filed on 28 November 2000 seeking orders:
(1)restraining the respondents until determination of the application from granting any exploration or mining interest, or making any other determination consequent on the notice decisions or the expedited procedure decisions;
(2)restraining the respondents from continuing to process outstanding applications for exploration and mining interests in relation to land or waters in the Northern Territory which are not Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 until the determination of a complaint lodged on 13 November 2000 with the Human Rights and Equal Opportunity Commission by the NLC, on behalf of itself and all native title holders who may be affected by any application lodged under the Mining Act (NT) in respect of which Subdivision P applies or will apply;
(3)suspending the operation of the notice decisions and the expedited procedure decisions for the period from the date on which the order is made until 7 days after the final determination of this application;
(4)requiring the first respondent to provide a statement of reasons for the notice decisions and the expedited procedure decisions referred to in schedule B within 28 days.
The application in respect of paragraph (4) was not pressed. The applicant relied upon two affidavits of Gregory John Carter, a solicitor employed by the NLC, sworn respectively on 27 November 2000 and 4 December 2000. The first affidavit has 57 documentary exhibits annexed whilst the second has 7 exhibits. Counsel for the respondents objected to a number of passages in the affidavit of 27 November 2000. In some instances the passages were not pressed whereas in others I directed that the objection either be sustained or the passages stand. Details of these rulings appear in the transcript of the hearing. The respondents relied upon affidavits of:
Jeremy Paul Frank Whitfield , sworn 5 December 2000 (including 18 exhibits);
Robert Lindsay Adams, sworn 5 December 2000 (including 2 exhibits);
Timothy Joyce, sworn 5 December 2000 (including 4 exhibits); and
Sonia Lee Brownhill, sworn 6 December 2000.
No objections were raised to the content of the respondent’s affidavits. Neither party sought to cross examine any of the deponents on their affidavits. At the hearing of the motion counsel acting for Mount Isa Mines Limited (an applicant affected by one or more of the s.29 notices) sought, and was granted, leave to appear but took no active part in the proceeding other than to advise the Court that his client adopted the case put on behalf of the first and second respondents.
The case put in support of the motion can be conveniently summarised by reference to the grounds set out in the application which (excluding the grounds relating to the refusals) are as follows:
(1)That procedures that were required by law to be observed in connection with the making of the notice decisions were not observed, in that:
(a) s.29(3) of the Native Title Act requires that the public be notified in the determined way of the act unless there is a registered native title body corporate in relation to all of the land that will be affected by the act;
(b)     there was no registered native title body corporate in relation to any of the lands;
(c)     clause 6(5) of the Native Title (Notices) Determination 1998 requires that such notice must include “a clear description of the area that may be affected by the act”;
(d)     the published advertisements did not include a description which complied with that requirement; and
(e) by virtue of s.25(4) of the Native Title Act such a failure to comply with procedures invalidates the act to the extent that it affects native title.
(2)That the notice decisions were an improper exercise of the power, in that:
(a)     the first respondent failed to take a relevant consideration into account, namely the capacity of the representative bodies to comply with their statutory obligations where so large a volume of acts are notified within a short time of each other;
(b)     the power was exercised for a purpose other than a purpose for which it was conferred, in that:
(i)the power was conferred for the purpose of enabling potential native title claimants to be informed of their rights under the Native Title Act and to take steps under the Native Title Act to protect those rights; and
(ii)the power was exercised for purposes that included the purpose of making it impractical for potential claimants to be informed of, and to take steps to protect, their rights under the said Act.
(c)     the first respondent had a discretion as to when to make the notice decisions, and exercised that discretionary power in bad faith;
Particulars
The first respondent exercised the discretion to make the decisions within a particular timeframe in the knowledge that:
(i)the representative bodies would be unable to comply with their statutory obligations in respect of the notices within the time prescribed by the Native Title Act; and
(ii)prospective native title claimants would be unable, as a practical matter, to be informed of the acts, advised of their rights and to formulate and lodge and obtain registration of native title determination applications within the time prescribed by the said Act.
(d)     the decisions were so unreasonable that no reasonable person could have so exercised the power;
(e)     the decisions were an abuse of power, for the reasons particularised in relation to ground (2)(c);
(f)     the decisions incorporated the expedited procedure decisions, which are void for the reasons particularised below.
(3)The notice decisions, the expedited procedure decisions and the course of conduct, in the circumstances particularised above, contravened s.9 of the Racial Discrimination Act 1975 in that they had the purpose or effect of impairing the rights of native title holders only, which rights were enjoyed by a race, namely the Aboriginal peoples, to the exclusion of all other races and ethnic groups.
(4)A breach of the rules of natural justice occurred in connection with the making of the notice decisions, the expedited procedure decisions and the course of conduct in that the procedures adopted in giving the notices:
(a)     precluded the proper exercise by the representative bodies of their statutory functions under the Native Title Act;
(b)     resulted in the loss of the effective exercise of statutory protections provided by the said Act for the benefit of those who hold or may hold native title in particular land or waters affected by the exploration and mining applications.
(5)The procedures that were required by law to be followed in making the expedited procedure decisions were not followed, in that a notice under section 29 of the Native Title Act could only include an expedited procedure statement if the first and second respondents had considered whether the act was an act attracting the expedited procedure, and neither the first nor the second respondent had given proper, genuine and realistic consideration to that issue.
(6)The expedited procedure decisions were an improper exercise of power in that:
(a)     the first respondent failed to take a relevant consideration into account, namely the capacity of the representative bodies to comply with their statutory obligations where so large a volume of acts are notified within a short time of each other;
(b)     the power was exercised for a purpose other than a purpose for which it was conferred, in that:
(i)the power was conferred for the purpose of enabling potential native title claimants to be informed of their rights under the Native Title Act and to take steps under the said Act to protect those rights;
(ii)the power was exercised for purposes that included the purpose of making it impractical for potential claimants to be informed of, and to take steps to protect, their rights under the said Act.
(c)     The power was exercised in accordance with a rule or policy that such a statement would be included in all the notice decisions which relate to applications for exploration licences, without regard to the question of whether the particular act is an act attracting the expedited procedure;
(d)     The decisions were so unreasonable that no reasonable person could have so exercised the power.
The respondents oppose the granting of the relief sought or any relief pending trial of the proceeding. In substance they dispute that the notice decisions, the expedited procedure decisions and the course of conduct are decisions or conduct which fall within the review functions of the Court under the ADJR Act and further they maintain that there has been no procedure or other irregularity in relation to the form or content of the s.29 notices which have been advertised. In addition, it is said that, on the balance of convenience, the Court ought not to grant interlocutory relief even if it be found that there is a serious question to be tried. On this issue the respondents rely upon the economic effects of further delaying mining activity in the Territory and the fact that the Native Title Act protects the interests of native title holders against any invalid act.
It is common cause that the granting by the first respondent of any of the applications referred to in schedule A to the application would for the purposes of native title be a future act to which the provisions of the Native Title Act, particularly those of Subdivision P, apply. Under the Native Title Act a future act is invalid to the extent that it affects native title unless a provision of the Act provides otherwise. Subdivision P contains such a provision. However, before the act is done the parties are required to negotiate with a view to reaching an agreement about the act, but failing agreement, an arbitral body, or a Minister, will make a determination about the act. Subdivision P provides for certain procedures to be followed to give effect to “the right to negotiate”, and if the same are not complied with the act will be invalid to the extent that it affects native title.
The first respondent is the Minister responsible for the administration of the Mining Act (NT) under which he is authorised, in accordance with procedures set out in the Act, to grant exploration licences and other mining tenements. He also has a similar function in relation to applications under the Petroleum Act(NT). Prior to the decision of the High Court in Wik Peoples v Queensland 187 CLR 1 (Wik) mining rights were granted in relation to pastoral leasehold land in the Northern Territory pursuant to the Mining Act without reference to the right to negotiate procedures, it being assumed that the grant of a pastoral lease extinguished native title. Once Wik had established that this assumption was flawed, the Northern Territory government, as a matter of policy, deferred consideration of granting new mining rights. Following the passage of the Native Title Amendment Act1998, the Northern Territory Parliament passed a package of legislation to take advantage of sections of the Act by which it became possible to establish alternative provisions to have effect instead of those of Subdivision P, but in the result, the alternative provisions were disallowed by the Commonwealth Senate. This occurred on 31 August 1999. Although efforts were made to revive the alternative provisions scheme, by March 2000 the Northern Territory government had apparently decided to abandon those efforts and on 22 March 2000 the first respondent announced that all exploration and mining applications would be processed using the right to negotiate provisions of the Native Title Act. By this stage there was a backlog of approximately 1000 applications to be dealt with. On 7 June 2000 the first respondent endorsed procedures to implement the right to negotiate provisions in relation to the outstanding applications.
Central to the right to negotiate regime under the Native Title Act are the provisions of ss.28, 29 and 30 which, (to the extent presently relevant), provide:
28 (1)Subject to the Act, an act to which this Subdivision applies is invalid to the extent that it affects native title unless, before it is done, the requirements of one of the following paragraphs are satisfied:
(a)by the end of the period of 4 months after the notification day for the act (see subsection 29(4)), there is no native title party in relation to any of the land or waters that will be affected by the act;
(b)after the end of that period, but immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act;
(c)subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;
(d)a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;
(e)native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);
(f)an agreement of the kind mentioned in paragraph 31(1)(b) is made;
(g)a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with;
(h)a determination that the act must not be done is declared to be overruled in accordance with section 42.
(2)     . . . .
29(1)     Before the act is done, the Government party must give notice of the act in accordance with this section.
(2)The Government party must give notice to:
(a)any registered native title body corporate (a native title party) in relation to any of the land or waters that will be affected by the act; and
(b)unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:
(i)any registered native title claimant (also a native title party); and
(ii)any representative Aboriginal/Torres Strait Islander body;
in relation to any land or waters that will be affected by the act; and
(c)if the doing of the act has been requested or applied for by the person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied) – that person (a grantee party); and
(d)the registrar or other proper officer of the arbitral body in relation to the act.
(3)Before the act is done, the Government party or the grantee party must also notify the public in the determined way (see section 252) of the act, unless there is a registered native title body corporate in relation to all of the land or waters that will be affected by the act.
(4)The notice given under subsection (2) or (3) must:
(a)specify a day as the notification day for the act; and
(b)contain a statement to the effect that, under section 30, persons have until 3 months after the notification day to take certain steps to become native title parties in relation to the notice; and
(c)be accompanied by any prescribed documents and include any prescribed information.
(5)Each such notice in relation to the act must specify the same day as the notification day.
(6)That day must be a day by which, in the Government party’s opinion, it is reasonable to assume that all notices under subsections (2) and (3) in relation to the act will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those subsections.
(7)The notices under this section may include a statement that the Government party considers the act is an act attracting the expedited procedure.
(8)Notice to the public under subsection (3) of 2 or more acts to which this Subdivision applies may be given in the same notice.
(9). . . . .
(10) . . . . .
30 (1)     Each of the following is also a native title party:
(a)any person who, 4 months after the notification day (see subsection 29(4)), is a registered native title claimant in relation to any of the land or waters that will be affected by the act, so long as:
(i)the application containing the claim was filed in the Federal Court, or given to the recognised State/Territory body, before the end of 3 months after the notification day; and
(ii)the claim related to any of the land or waters that will be affected by the act; . . . . .

Section 253 of the Native Title Act defines the term registered native title claimant as:
a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.
The Native Title Registrar is required to establish and keep a register known as the Register of Native Title Claims (NTA s.185) which must contain, inter alia, in respect of each claim accepted for registration under s.190A, the name and address of the applicant (s.186(1)(d)). The Registrar is required by s.190A(I) to consider, in accordance with that section, each claimant application received pursuant to s.63 or s.64(3) and if the claim satisfies all of the conditions of s.190B and s.190C, must accept the claim for registration (s.190A(6)). Relevant to this proceeding is s.190A(2) which provides:
(2)If, either before the Registrar begins to do so or while he or she is doing so, a notice is given under section 29 in relation to an act affecting any of the land or waters in the area covered by the application, the Registrar must use his or her best endeavours to finish considering the claim by the end of 4 months after the notification day specified in the notice.
The Native Title (Notices) Determination 1998 made pursuant to s.252 of the Native Title Act provides that a notice under s.29(3) must be published by an advertisement in one or more newspapers that circulate generally throughout the area to which the notice relates and in a relevant special-interest publication. (Determination, s.6). For present purposes it is accepted that the Northern Territory News (NT News) and the Koori Mail respectively satisfy those requirements. Section 6(5) of the determination further provides:
(5) Notice under subsection 29(3) of the Act must include:
(a)a clear description of the area that may be affected by the act; and
(b)a description of the nature of the act; and
(c)the name and postal address of the person by whom the act would be done; and
(d)a statement of how further information about the act can be obtained.
Commencing on 6 September 2000 and thereafter fortnightly on 20 September 2000, 4 and 18 October 2000 and 1, 15 and 29 November 2000 the first respondent caused to be published in each of the NT News and Koori Mail notice of his intention to do an act, namely to grant the exploration licences or the mineral claims particularised in the notices in accordance with the respective applications therefor (the s.29 notices). A total of 97 exploration licence applications and 21 mineral claim applications are identified in the various notices. In addition in separate notices advertised on 1 November 2000 the first respondent gave notice of his intention to grant 4 petroleum exploration permit applications pursuant to the Petroleum Act (NT). Each of the s.29 notices (including the separate notice relating to petroleum exploration permit applications) refers to applications in respect of land and waters in the areas of responsibility of both the NLC and the CLC. Details of the respective applications notified in each series of advertisements are set out in schedule A to the application. Each of the notices relating to exploration licence applications contains the following statement:
Expedited Procedure: The Northern Territory Government considers that the act(s) is an act(s) attracting the expedited procedure as defined in section 237 of the Native Title Act. The exploration licence(s) referred to in this notice may be granted unless an objection is made by a native title party to the statement that the act is one which attracts the expedited procedure. Such an objection must be made to the National Native Title Tribunal within 4 months of the notification day.
No such statement appears in the notices relating to mineral claim applications or petroleum exploration permit applications. Each of the notices specifies a notification day which in each case is the date of the publication of the newspaper in which the notice was advertised.
The applicant says that as the effect (if not the purpose) of pursuing the course of conduct will be to disadvantage one ethnic group (Aboriginal people) in relation to their particular property rights, there may well be a contravention of s.9 of the Racial Discrimination Act 1975 (“the RDA”). On 13 November 2000 the NLC lodged a complaint with the Human Rights and Equal Opportunity Commission alleging unlawful discrimination by the first and second respondents in issuing the s.29 notices in breach of section 9 of the RDA. The relief sought in the complaint is:
(a)a declaration that the notices so far given pursuant to s.29 of the Native Title Act are invalid and ineffective;
(b)a declaration that the inclusion in each of those notices relating to an exploration licence application of a statement pursuant to s.32 of the NTA is invalid and ineffective;
(c)an order restraining the respondents from continuing to give notice under s.29 of the NTA in relation to the outstanding applications, except at such times and subject to such intervals as will allow the proper exercise of the statutory functions of the representative bodies and the obtaining of appropriate assistance by native title holders and persons who may hold native title, to allow them to protect their interests in accordance with the procedures set out in the NTA;
(d)an order that the respondents not include statements under s.32 of the NTA;
(e)an order restraining the respondents from granting mining tenements referred to in the notices which have been given or may be given by the date of the order; and
(f)an order restraining the respondents from issuing any further notices until determination of this complaint.
By letter dated 13 November 2000 the NLC invited the President of the Human Rights and Equal Opportunity Commission to terminate the complaint on the basis that “the subject matter of the attached complaint involve[s] an issue of public importance that should be considered as soon as possible by the Federal Court. Further; and given the history of the matter set out in the complaint, we are doubtful that there is any reasonable prospect of the matter being settled by conciliation”. Copies of the complaint and letter are exihibited to Mr Carter’s affidavit of 27 November 2000 but no other information concerning the matter is before the Court.
Subsequent to the commencement of this proceeding, namely on 5 December 2000, five native title determination applications were filed by the NLC in the Northern Territory District Registry of the Court. Those applications seek determinations of native title in relation to areas of land and waters which are covered by various exploration licence applications under the Mining Act (NT) including all of the applications (being 7 in number) advertised on 6 September 2000 which are within the area for which the NLC is the representative Aboriginal/Torres Strait Islander body. There is no evidence that any native title determination applications have been filed in relation to land and waters covered by any other of the exploration licence, petroleum exploration permit or mineral claim applications referred to in the s.29 notices.
Sections 31 and 32 of the Native Title Act deal with the negotiation procedure following the advertising of a s.29 notice. If the notice does not include a statement that the Government party considers the act attracts the expedited procedure, the Government party must give all native title parties an opportunity to make submissions regarding the act and the parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act, either with or without conditions (NTA s.31(1)). Clearly, in these circumstances the existence of a native title party is essential for the negotiation procedure to be triggered. Similarly, in the case of a notice which includes a statement that the Government party considers the act is an act attracting the expedited procedure, if a native title party does not lodge an objection, the Government party may do the act (NTA s.32(2)). If a native title party does object the arbitral body must determine whether the act attracts the expedited procedure and if it so determines the Government party may do the act (s.32(4)). Otherwise the procedure under s.31(1) will apply (s.32(5)).It follows that if there is no native title party to lodge an objection there can be no occasion for the negotiation procedure to be activated. In these circumstances the question of whether the inclusion of a statement regarding the expedited procedure in a s.29 notice a reviewable decision is not one of any real relevance in this proceeding.
In the context of this application the following facts are not in dispute:
(a)the first respondent is the Government party for the purpose of the right to negotiate provisions;
(b)there is no registered native title body corporate in relation to any of the land and waters that would be affected by the granting of the mining interests referred to in the s.29 notices;
(c)there is no registered native title claimant in relation to such land and waters;
(d)either the NLC or the CLC is the representative Aboriginal/Torres Strait Islander body for the land and waters referred to in the s.29 notices.
The Native Title Act makes no provision for the extension of the times specified in s.28(1) or s.30(1). Indeed, the obligation placed upon the Registrar by s.190A(2) coupled with the absence of any provision or explanation as to the effect in the event that the Registrar is unable to finish considering a claim by the end of 4 months after the relevant notification day is a clear indication of a legislative intention to require strict compliance with the time limits specified. To the extent that Parliament has made a clear expression of its intention, there is no scope for the Court to intervene to remedy what may appear to be a provision based upon a lack of understanding of the practical difficulties involved in complying with its requirements, however unjust the result may be in a particular case.
Apart from the complaints made concerning the decision making processes that have resulted in a large number of mining applications being notified under s.29 within a relatively short period, the applicant asserts that the s.29 notices do not comply with the requirement of s.6(5)(a) of the Native Title (Notices) Determination in that they do not include a clear description of the area that may be affected by the act. Although some of the notices advertised in the NT News contain diagrams showing the boundaries of the area affected by the application, others do not but rather provide a verbal description referring to a direction and distance from a prominent geographical feature or town or settlement in the vicinity of each application area. In every case the notice contains the geographic co-ordinates of the centroid (centre) of each area applied for. Apart from the notices published on 1 November 2000 in relation to the 4 petroleum exploration permit applications, none of the advertisements published in the Koori Mail contain diagrams. Whether or not the form of the s.29 notices adequately complies with the requirement to provide a clear description of the area that may be affected by the act is an important issue affecting the operation of the right to negotiate regime. It is one which can only be resolved by a full hearing of relevant evidence and legal argument. It is not something which the Court could hope to resolve in any definitive way on the material available to it. There is accordingly a serious question to be tried.
The main thrust of the applicant’s case in relation to the notice decisions and the course of conduct is that given the number of proposed future acts notified, the geographic, demographic and climatic conditions which prevail in the Northern Territory and the limited financial resources available to the representative bodies, they are unable, within the period prescribed by the Native Title Act, to perform their proper functions under the Native Title Act as representative Aboriginal/Torres Strait Islander bodies. Those functions are identified in Division 3 of Part II of the Act. Of particular relevance in this proceeding, having regard to the case presented on behalf of the applicant, are the facilitation and assistance functions (referred to in s.203BB) and the notification functions (referred to in s.203BG). The sections in question provide:
203BB(1) The facilitation and assistance functions of a representative body are:
(a)to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and
(b)to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:
(i)native title applications;
(ii)future acts;
(iii)indigenous land use agreements or other agreements in relation to native title;
(iv)rights of access conferred under this Act or otherwise;
(v)any other matters relating to native title or to the operation of this Act.
(2)A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so.
(3). . . . .
203BGThe notification functions of a representative body are:
(a)to ensure that, as far as reasonably practicable, notices:
(i)that are given to the representative body (whether under this Act or otherwise); and
(ii)that relate to land or waters wholly or partly within the area for which the body is a representative body;
are brought to the attention of any person who the representative body is aware holds or may hold native title in relation to the land or waters, where the representative body considers that the notices would be unlikely to come to the attention of the person by some other means; and
(b)as far as is reasonably practicable, to identify and notify other persons who hold or may hold native title in relation to the land or waters about notices of the kind mentioned in paragraph (a); and
(c)as far as is reasonably practicable, to advise the persons referred to in paragraphs (a) and (b) of relevant time limits under this Act or another law of the Commonwealth or a law of a State or a Territory, if the person would not otherwise be notified of those time limits.
There is no evidence before the Court to suggest that any of the s.29 notices have been brought to the attention of any relevant person or that any attempt has been made in that regard and this notwithstanding s.203BA(1) which provides:
(1)A representative body must use its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by:
(a)the time limits under this Act; or
(b)time limits, under another law of the Commonwealth or a law of a State or Territory, that are relevant to the performance of its functions.
It may be presumed, in view of the filing of the five native title determination applications on 5 December 2000 referred to above, that the relevant notification functions and facilitation and assistance functions have been performed in a timely manner, in relation to the areas of land and waters affected by those applications, but there is no other evidence as to what steps may have been taken in consequence of the advertising of the s.29 notices. The applicant’s evidence makes no reference to any steps that had been, or were being taken, in relation to the performance of the NLC’s notification and facilitation functions in relation to the five native title determination applications filed on 5 December 2000. Evidence in relation to these applications was provided in the affidavit of Sonia Lee Brownhill sworn on 6 December 2000 and filed on behalf of the respondents. It is obvious that at the time the affidavits filed on behalf of the applicant were prepared (they being sworn respectively on 27 November 2000 and 4 December 2000) the five applications must have been in an advanced state of preparedness. The failure to make reference to this fact or to any other steps taken by either representative body in relation to areas of land and waters covered by the applications referred to in the s.29 notices somewhat diminishes the weight of the arguments advanced in support of the applicant’s case.
The motion for interlocutory relief was argued and responded to on the basis that the principal issues for the Court’s consideration are first whether there is a serious question to be tried and second, if so, whether the balance of convenience warrants the Court intervening in order to preserve the status quo. Having concluded that in relation to the form and content of the s.29 notices there is a serious question to be tried, it is unnecessary at this stage to consider the other grounds raised by the applicant but rather, it is necessary to consider the issue of balance of convenience.
The status quo in the present context is that if the s.29 notices are valid, time is running in relation to the right to negotiate provisions. If time runs out before there is a registered native title claimant in respect of any area of land and waters the subject of any of the applications referred to in the s.29 notices, the right to negotiate will not arise. The purpose of the relief sought would appear to be to stop time running until the final resolution of the application. But how can this be achieved? If the first respondent is restrained from granting any mining interests until after the proceeding is resolved and it is found that the s.29 notices are valid, the delay would not enhance the ability of potential native title claimants to enliven their statutory right to negotiate. That right will only arise if a native title claimant application is filed in the Federal Court within 3 months of the notification day and if within 4 months of that date there is a registered native title claimant in respect of relevant land and waters. The only circumstance which would advantage those who may have a claim to native title in relation to the land and waters affected by the applications the subject of the s.29 notices would be if the notices are found to be invalid either by reason of the inadequacy of their form and content or by reason of some deficiency in the decision making process attending the giving of notice. In such a case the right to negotiate procedure would not have been enlivened and no question of time running would arise. And if no valid s.29 notice has been given, any act on the part of the first respondent in the form of granting any of the notified mining interests would be invalid to the extent that it affects native title (NTA s.28(1)).
On the foregoing analysis the balance of convenience does not lie in favour of granting interlocutory relief. No useful purpose will be served by restraining the first respondent from proceeding to grant any applications under the Mining Act (NT), whatever the merits of the legal issues that have been raised in relation to the decision making process and the form of the s.29 notices. It is, and remains, a matter of judgment on the part of the first respondent as to whether in the circumstances it would be appropriate to rely on the current notices pending resolution of the matters in issue, and similarly, it would be for any grantee of a mining interest granted by the first respondent to make his own assessment of what may be the prudent course to adopt. In the event that a grantee of a mining interest should seek to take any action that may affect native title in circumstances not authorised by the Native Title Act, appropriate injunctive relief could then be sought. The same considerations apply in relation to the grounds asserted under both the ADJR Act and those said to arise under the Racial Discrimination Act.

The applicant’s motion for interlocutory orders filed on 28 November 2000 will be dismissed.

I certify that the preceding 26 Numbered paragraphs
are a true copy of the Reasons for Judgment herein
of the Honourable Justice Olney.

Associate: ……………………………..

Date: 15 December 2000

Counsel for the applicant: Mr J Basten, QC with Mr N. Williams

Solicitor for the applicant: Northern Land Council

Counsel for the First and
Second Respondents: Mr V Hughston with Ms R.J. Webb

Solicitor for the First and
Second Respondents: Solicitor for the Northern Territory

Mr N. Henwood and Mr G. Kennedy appeared by leave for Mount Isa Mines Limited.

Date of Hearing: 7 and 8 December 2000

Date of Judgment: 15 December 2000